Gilberto Elias Fumo Zucula v The Officer in Charge – Harare Remand Prison and Others

The applicant, claiming to be a Mozambican national, was arrested on 28 February 2015 in Harare on allegations of being in Zimbabwe illegally. He was detained at Harare Remand Prison without being charged with any offence. For two weeks from arrest to 13 March 2015 when the application was heard, he had not appeared in court. The applicant was married to a Zimbabwean citizen, Cynthia Ndlovu, since 29 May 2009. Upon arrest, he failed to produce a passport or any permit authorizing his stay in Zimbabwe. His wife later produced a Mozambican birth certificate and driver's licence to immigration offices. These documents were sent to the Mozambican embassy for verification, which responded that while the documents were genuine, an interview established that the applicant was not a Mozambican citizen. The applicant allegedly lost his passport before arrest, but only made a police report on 3 March 2015, after his arrest. No records of his entry into Zimbabwe could be found at Forbes, Nyamapanda or Machipanda Border Posts. Six other foreign nationals arrested with him had already been deported.

• Whether the applicant's detention without being charged with an offence or brought before a court violated his constitutional right to personal liberty under section 49 of the Constitution
• Whether the requirement in section 50(2) of the Constitution to bring an arrested person before court within 48 hours applied to the applicant's detention
• Whether the detention of a prohibited person pending deportation under sections 8(1) and 8(2) of the Immigration Act is lawful
• Whether a foreigner in Zimbabwe illegally has the right to be released from detention pending deportation arrangements

The application for the applicant's release was dismissed with costs.

1. Section 49(1)(a) and 49(1)(b) of the Constitution must be read disjunctively - a person can be deprived of liberty without being charged with an offence provided it is not arbitrary and is for just cause. 2. The 48-hour requirement in section 50(2) of the Constitution applies only to persons detained for the purpose of being brought to court or for an alleged offence, not to persons detained under section 49(1)(b) for other lawful purposes. 3. Sections 8(1) and 8(2) of the Immigration Act authorize detention of suspected illegal immigrants for up to 14 days for verification purposes and pending deportation arrangements, without requiring criminal charges. 4. A prohibited person under the Immigration Act has no right to remain in Zimbabwe and may be detained pending deportation without being taken to court, provided the detention complies with the law and is for the just cause of deportation. 5. Such detention does not infringe the constitutional right to personal liberty under section 49(1)(b) as it is lawful, not arbitrary, and serves the just cause of deportation.

The court observed that not every detained person should appear in a court of law, and that to release a prohibited person from detention would be unreasonable, inappropriate and illogical as it would tantamount to authorizing them to remain in Zimbabwe without valid documents. The court also noted that once a country disowns a person claiming to be its national, immigration authorities cannot force that country to receive such person as it risks sparking a diplomatic row. The court commented that the natural thing for a person who has lost travel documents is to report the loss to local police, immigration authorities and their embassy to obtain replacement documents, which the applicant failed to do, casting doubt on his claim of losing his passport.

This case is significant in Zimbabwean immigration and constitutional law as it clarifies the scope of constitutional protections for personal liberty in the context of immigration detention. It establishes that foreign nationals detained as prohibited persons pending deportation need not be brought before court within 48 hours, distinguishing such detention from detention for criminal prosecution. The judgment affirms broad powers of immigration authorities to detain prohibited persons without criminal charges for purposes of verification and deportation, and interprets section 49(1)(b) of the Constitution as permitting such detention provided it is not arbitrary and is for just cause. It demonstrates the primacy of immigration law enforcement over personal liberty rights for persons in the country illegally.